Citation Nr: 0528779
Decision Date: 10/26/05 Archive Date: 11/09/05
DOCKET NO. 02-05 353 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to a rating higher than 10 percent for
residuals of a gunshot wound gunshot wound to the left foot.
3. Entitlement to a rating higher than 10 percent for
residuals of a gunshot wound to the left hand.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert A. Leaf, Counsel
INTRODUCTION
The veteran had active military service from January 1949 to
June 1952.
This appeal to the Board of Veterans' Appeals (Board) arises
from a January 2002 decision of a Regional Office (RO) of the
Department of Veterans Affairs (VA). The RO denied service
connection for tinnitus. As well, the RO confirmed and
continued a 10 percent evaluation for residuals of a gunshot
wound to the left foot; also, the RO raised the 0 percent, or
noncompensable evaluation for residuals of a gunshot wound to
the left hand to 10 percent.
The Board remanded the case to the RO, via the Appeals
Management Center in Washington, D.C., in December 2003, for
further development. The development requested on remand was
completed, and the case has been returned to the Board for
continuation of appellate review.
FINDINGS OF FACT
1. There is no competent medical evidence linking current
tinnitus to military service.
2. Residuals of a gunshot wound to the left foot are
productive of no more than moderate impairment.
3. Residuals of a gunshot wound to the left hand are
manifested primarily by an angulation of the distal thumb in
hyperextension and by some sensory changes involving the left
thumb; there is good grip strength of the left hand, the left
thumb can be opposed to within one cm. of the other fingers,
and the wound scar is asymptomatic.
CONCLUSIONS OF LAW
1. Tinnitus was not incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131 (west 2002); 38 C.F.R. § 3.303
(2005).
2. The criteria for a rating higher than10 percent for
residuals of a gunshot wound of the left foot are not met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic
Code 5284 (2005).
3. The criteria for a rating higher than10 percent for
residuals of a gunshot wound of the left hand are not met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic
Codes 5152, 5224 (effective prior to and since August 26,
2002); 38 C.F.R. § 4.71a, Diagnostic Code 5228 (effective
since August 26, 2002); 38 C.F.R. § 4.118, Diagnostic Code
7805 (effective prior to and since August 30, 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Procedural Due Process, Preliminary Duties to Notify and
Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable RO decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also
Mayfield v. Nicholson, 19 Vet. App. 103 (2005).
VA satisfied its duty to notify by means of letters, dated in
July 2001 and May 2004, from the RO to the appellant. The
letters informed him what evidence was required to
substantiate the claims and of his and VA's respective duties
for obtaining evidence. The appellant was also asked to
submit evidence and/or information in his possession to the
RO.
As for assisting the veteran with his claims, the Board notes
that the veteran's service medical records are unavailable.
The National Personnel Records Center (NPRC) indicated that
his service medical records are unavailable, as they were
apparently destroyed in a fire in 1973. Where service
medical records are presumed destroyed, the Board's
obligation to explain its findings and to consider the
benefit of the doubt rule is heightened. O'Hare v.
Derwinski, 1 Vet. App. 365, 367 (1991). When a veteran's
records have been destroyed, the VA has an obligation to
search for alternative records which support the veteran's
case. See Cuevas v. Principi, 3 Vet. App. 542 (1992);
O'Hare, supra. In this regard, NPRC obtained a statement
from the Office of the Surgeon General regarding treatment
for malaria in September 1951. Unfortunately, that statement
does not make reference to conditions pertinent to this
appeal. The Board concludes that further efforts to obtain
service medical records would be futile.
Additionally, the veteran's VA medical records are on file.
There is no indication that other Federal department or
agency records exist that should be requested. He has not
identified records from non-VA medical sources that must be
obtained. There is no indication that any pertinent evidence
was not received, which is obtainable.
Note also that the July 2001 VCAA letter from the RO advising
the veteran of his rights and responsibilities in VA's claims
process predated the RO's January 2002 decision initially
adjudicating his claims. So the VCAA letter complied with
the sequence of events (i.e., VCAA letter before initial
adjudication) stipulated in Pelegrini, supra.
The Board finds that VA has secured all available evidence
and conducted all appropriate development. Hence, the Board
concludes that VA has fulfilled its duties under the VCAA.
Legal Criteria
In order to establish service connection for a claimed
disability, the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein beyond its natural progression.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Service connection may also be granted for a disease
initially diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In general, disability evaluations are assigned by applying a
schedule of ratings that represent, as far as can be
determined, the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2004). Separate
diagnostic codes identify the various disabilities and the
criteria that must be met for specific ratings.
The regulations require that, in evaluating a given
disability, the disability be viewed in relation to its whole
recorded history. 38 C.F.R. § 4.2 (2004); see, too,
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However,
where, as here, entitlement to compensation already has been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).
Also, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2004). All
reasonable doubt is resolved in the veteran's favor.
38 C.F.R. § 4.3 (2004).
A 30 percent rating is warranted for severe foot injuries. A
20 percent rating is warranted for moderately severe foot
injuries. A 10 percent rating is warranted for moderate foot
injuries. 38 C.F.R. § 4.71a, Diagnostic Code 5284.
Note: With actual loss of use of the foot, rate 40 percent.
Effective August 30, 2002, during the pendency of the
veteran's appeal, the schedular criteria for the evaluation
of skin disorders, including those for residual scarring,
were revised. As well, during the pendency of his appeal,
the schedular criteria for the evaluation of finger injuries
were also revised
Where a law or regulation changes after a claim has been
filed or reopened, but before the administrative or judicial
appeals process has been concluded, the version of the law or
regulation most favorable to the appellant generally applies.
However, only the former criteria can be applied for the
period prior to the effective date of the new criteria. But
both the old and new criteria can be applied as of that date.
See VAOPGCPREC 7-2003 (Nov. 19, 2003). See also 38 U.S.C.A.
§ 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000 (Apr. 10,
2000).
Under criteria in effect prior to and since August 30, 2002,
scars may be rated on limitation of function of the part
affected under 38 C.F.R. § 4.118, Diagnostic Code 7805.
Prior to August 26, 2002, the following rules were observed
in classifying the severity of ankylosis and limitation of
motion of single digits and combinations of digits:
(1) Ankylosis of both the metacarpophalangeal and proximal
interphalangeal joints, with either joint in extension or in
extreme flexion, will be rated as amputation.
(2) Ankylosis of both the metacarpophalangeal and proximal
interphalangeal joints, even though each is individually in
favorable position, will be rated as unfavorable ankylosis.
(3) With only one joint of a digit ankylosed or limited in
its motion, the determination will be made on the basis of
whether motion is possible to within 2 inches (5.1
centimeters) of the median transverse fold of the palm; when
so possible, the rating will be for favorable ankylosis,
otherwise unfavorable.
(4) With the thumb, the carpometacarpal joint is to be
regarded as comparable to the metacarpophalangeal joint of
other digits.
Since August 26, 2002, the following rules apply in rating
ankylosis or limitation of motion of single or multiple
digits of the hand:
(1) For the index, long, ring, and little fingers (digits
II, III, IV, and V), zero degrees of flexion represents the
fingers fully extended, making a straight line with the rest
of the hand. The position of function of the hand is with
the wrist dorsiflexed 20 to 30 degrees, the
metacarpophalangeal and proximal interphalangeal joints
flexed to 30 degrees, and the thumb (digit I) abducted and
rotated so that the thumb pad faces the finger pads. Only
joints in these positions are considered to be in favorable
position. For digits II through V, the metacarpophalangeal
joint has a range of zero to 90 degrees of flexion, the
proximal interphalangeal joint has a range of zero to 100
degrees of flexion, and the distal (terminal)
interphalangeal joint has a range of zero to 70 or 80
degrees of flexion.
(2) When two or more digits of the same hand are affected
by any combination of amputation, ankylosis, or limitation
of motion that is not otherwise specified in the rating
schedule, the evaluation level assigned will be that which
best represents the overall disability (i.e., amputation,
unfavorable or favorable ankylosis, or limitation of
motion), assigning the higher level of evaluation when the
level of disability is equally balanced between one level
and the next higher level.
(3) Evaluation of ankylosis of the index, long, ring, and
little fingers:
(i) If both the metacarpophalangeal and proximal
interphalangeal joints of a digit are ankylosed, and either
is in extension or full flexion, or there is rotation or
angulation of a bone, evaluate as amputation without
metacarpal resection, at proximal interphalangeal joint or
proximal thereto.
(ii) If both the metacarpophalangeal and proximal
interphalangeal joints of a digit are ankylosed, evaluate as
unfavorable ankylosis, even if each joint is individually
fixed in a favorable position.
(iii) If only the metacarpophalangeal or proximal
interphalangeal joint is ankylosed, and there is a gap of
more than two inches (5.1 cm.) between the fingertip(s) and
the proximal transverse crease of the palm, with the
finger(s) flexed to the extent possible, evaluate as
unfavorable ankylosis.
(iv) If only the metacarpophalangeal or proximal
interphalangeal joint is ankylosed, and there is a gap of
two inches (5.1 cm.) or less between the fingertip(s) and
the proximal transverse crease of the palm, with the
finger(s) flexed to the extent possible, evaluate as
favorable ankylosis.
(4) Evaluation of ankylosis of the thumb:
(i) If both the carpometacarpal and interphalangeal
joints are ankylosed, and either is in extension or full
flexion, or there is rotation or angulation of a bone,
evaluate as amputation at metacarpophalangeal joint or
through proximal phalanx.
(ii) If both the carpometacarpal and interphalangeal
joints are ankylosed, evaluate as unfavorable ankylosis,
even if each joint is individually fixed in a favorable
position.
(iii) If only the carpometacarpal or interphalangeal
joint is ankylosed, and there is a gap of more than two
inches (5.1 cm.) between the thumb pad and the fingers, with
the thumb attempting to oppose the fingers, evaluate as
unfavorable ankylosis.
(iv) If only the carpometacarpal or interphalangeal
joint is ankylosed, and there is a gap of two inches (5.1
cm.) or less between the thumb pad and the fingers, with the
thumb attempting to oppose the fingers, evaluate as
favorable ankylosis.
(5) If there is limitation of motion of two or more digits,
evaluate each digit separately and combine the evaluations.
Under criteria in effect prior to and since August 26, 2002,
amputation of the thumb of the major or minor extremity
warrants the following percentage ratings under 38 C.F.R.
§ 4.71a, Diagnostic Code 5152:
With metacarpal resection
40 30
At the metacarpophalangeal joint or through the proximal
phalanx 30 20
At the distal joint or through the distal phalanx
20 20
The former criteria for rating amputation of the thumb
contained the following note: The single finger amputation
ratings are the only applicable ratings for amputations of
whole or part of single fingers.
Under criteria in effect prior to and since August 26, 2002,
ankylosis of the thumb of the major or minor extremity
warrants the following percentage ratings under 38 C.F.R.
§ 4.71a, Diagnostic Code 5224:
Unfavorable
20 20
Favorable
10 10
The former criteria for rating ankylosis of the thumb
contained the following note: Extremely unfavorable
ankylosis will be rated as amputation under Diagnostic Codes
5152 to 5156.
The revised criteria for rating ankylosis of the thumb
contains the following note: Also consider whether
evaluation as amputation is warranted and whether an
additional evaluation is warranted for resulting limitation
of motion of other digits or interference with overall
function of the hand.
Under criteria in effect since August 26, 2002, limitation of
motion of the thumb of the major or minor extremity warrants
the following percentage ratings under 38 C.F.R. § 4.71a,
Diagnostic Code 5228:
With a gap of more than two inches (5.1 cm.) between the
thumb pad and the fingers, with the thumb attempting to
oppose the fingers 20 20
With a gap of one to two inches (2.5 to 5.1 cm.) between the
thumb pad and the fingers, with the thumb attempting to
oppose the fingers 10 10
With a gap of less than one inch (2.5 cm.) between the thumb
pad and the fingers, with the thumb attempting to oppose the
fingers 0 0
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States
Court of Appeals for Veterans Claims held that in evaluating
a service-connected disability, the Board must consider
functional loss due to pain under 38 C.F.R. § 4.40 and
functional loss due to weakness, fatigability, incoordination
or pain on movement of a joint under 38 C.F.R. § 4.45. See,
too, 38 C.F.R. § 4.59.
Analysis
Service Connection for Tinnitus
The veteran contends that he has tinnitus from the acoustic
trauma of artillery fire he was exposed to during the Korean
War. He asserts that he has experienced a ringing in his
ears ever since an episode during 1950, in Korea, when he was
located only 20 meters from a an artillery piece that fired a
round.
The available evidence demonstrates that the tinnitus was
first established by a VA audiological examination in June
2004, thus several decades after the veteran had completed
military service in 1952. The VA audiologist, who reviewed
the veteran's claims file and conducted an examination,
determined that it was not (emphasis added) at least as
likely as not that the veteran's current tinnitus was
attributable to any event or occurrence of military service.
In reaching that determination, the VA audiologist mentioned
the veteran's history of inservice exposure to artillery
fire, as well as his history of postservice noise exposure.
In this regard, the veteran reported working for 37 years in
a book binding factory where there was noise significant
enough that he wore hearing protection; as well, he referred
to recreational hunting when he did not use hearing
protection.
The veteran's unsubstantiated lay assertion is the only
evidence linking his current tinnitus to military service.
There is no indication from the record that he has medical
training or expertise. As a lay person, he is not competent
to offer a medical opinion regarding the diagnosis or
etiology of a disorder. Espiritu v. Derwinski, 2 Vet. App.
492 (1992).
Where a claim for service connection is brought by a veteran
who engaged in combat, the Board must apply 38 U.S.C.A. §
1154 (West 2002), which provides that satisfactory lay or
other evidence that a disease or an injury was incurred in
combat will be accepted as sufficient proof of service
connection if the evidence is consistent with the
circumstances, conditions, or hardships of such service, even
if there are no official records indicating service
incurrence.
In this case, it is clear the veteran engaged in combat as he
received a Purple Heart and was awarded the Combat
Infantryman Badge. However, it should be noted that 38
U.S.C.A. § 1154 is limited to the question of whether a
particular disease or injury occurred in service, that is,
what happened then, and not with the question of either
current disability or nexus to service, both of which require
competent medical evidence. See, Brammer v. Derwinski, 3
Vet. App. 223, 225 (1992) and Rabideau v. Derwinski, 2 Vet.
App 141, 144 (1992). In other words, the veteran must still
present competent evidence of a current disability and
medical evidence showing a nexus between a current disability
and service. See, Arms v. West, 12 Vet. App. 188 (1999).
So, even accepting as true that the veteran was exposed to
noise during service and that he felt a ringing in his ears
at that time, he nevertheless has provided no medical
evidence showing that his current tinnitus had its onset in
service or is otherwise attributable to service.
For these reasons, the claim for service connection for
tinnitus must be denied. In reaching this conclusion, the
Board has considered the applicability of the benefit-of-the-
doubt doctrine. However, as the preponderance of the
evidence is against the appellant's claim, that doctrine is
not applicable in the current appeal. 38 C.F.R. § 3.102;
Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 38
U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1991).
Increased Ratings for Gunshot Wounds Residuals of the Left
Foot and Left Hand
Service connection was granted for residuals of a gunshot
wound to the left foot and left hand, and 0 percent, or
noncompensable evaluations were assigned for each disability,
effective May 1959. Subsequently, a 10 percent evaluation
was assigned for residuals of a gunshot wound to the left
foot, effective July 1991, and that rating has been in effect
since then. As previously mentioned, a 10 percent evaluation
was assigned for residuals of a gunshot wound to the left
hand, effective April 2001, and that rating has been in
effect since then.
With respect to the left foot, the veteran maintains that he
experiences swelling, pain and numbness and feels as if he is
walking on a million needles. He claims that he is unable to
walk uphill and must rest often because of left heel pain.
With respect to the left hand, the veteran contends that he
feels pain and loss of sensation of the thumb and also has
pain involving the index finger.
The veteran was afforded a VA examination in July 1989. He
reported he was right handed. It was found that he ambulated
unaided. Manual dexterity was excellent. Right hand grip
strength was about 100 pounds; left hand grip strength was
about 60 pounds. Right thumb and forefinger pinch grip
strength was about 40 pounds; left thumb and forefinger pinch
grip strength was about 20 pounds. A faint, healed dry scar,
two cm in length, was seen in the palm of the left hand near
the base of the left thumb. The veteran explained that this
scar was the residual of a gunshot wound sustained in the
Korean conflict. Additionally, there were minimal scars on
the tips of the second and third fingers of the left hand,
and he explained that these scars were due to a saw injury
sustained after military service. No scars were observed on
the left foot. The diagnoses were status post gunshot wound
to the left foot, with no residuals found; status post shell
fragment wound to the left hand, with dry, healed scar in the
palm as the sole residual; and status post "table saw
trauma" to the tips of the second and third fingers of the
left hand, after military service.
On a VA foot and hand examination in August 2001, the veteran
again mentioned the shrapnel injury to the left thumb. He
also stated that he sustained a gunshot wound to the left
heel. It was found that he had no muscle wasting, atrophy or
deformity of the left hand. He had full range of motion of
all fingers and the left wrist. Also, the examiner observed
no evidence of injury to the left foot, and there was no
muscle wasting or atrophy of the heel. The veteran had full
range of motion of the ankle, with dorsiflexion from 0 to 20
degrees and plantar flexion from 0 to 45 degrees. X-rays of
the left foot indicated mild osteopenia and a retrocalcaneal
spur. Also seen on x-ray was an abnormal hyperextension
position at the interphalangeal joint of the left thumb,
which could be secondary to soft tissue injury.
A VA examination of the feet was performed in May 2004.
Neurological inspection revealed diminished protective sense
of the left foot. The veteran could raise up on his toes and
heels. Range of motion of the mid-tarsal joint, subtalar
joint and ankle joint was good, without pain or crepitus,
bilaterally, and there were no areas of point tenderness on
either foot. Muscle strength was 5/5 in all four planes.
The veteran walked slowly with the aid of a crutch, but there
was no discernible limp. The diagnosis was decreased
sensation to the left foot.
A VA examination of the hands was performed in November 2004.
It was found that the veteran's distal left thumb had 45
degrees of extension and was abnormally extended in a
hitchhiker's pose. There was no atrophy of the left hand.
He complained of having decreased sensation to sharp touch
from the base of the thenar eminence of his left thumb to the
tip of his left thumb, on both the palmar and dorsal
surfaces. The veteran fell short by 1.0 cm when attempting
to touch his left thumb to base of his fifth finger. Grip
strength was equal bilaterally.
The residuals of a gunshot wound to the left foot are most
appropriately rated, in this case, on the basis of foot
injuries under 38 C.F.R. § 4.71a, Diagnostic Code 5284. The
medical evidence demonstrates that the ankle is the joint
affected by the original shrapnel injury that involved the
heel. Although the veteran has a bone spur in the area of
the heel, there is no x-ray evidence of damage to the ankle
joint or bony structures of the hindfoot. Normal range of
motion of the ankle is from 0 to 20 degrees of dorsiflexion
and from 0 to 45 degrees of plantar flexion. 38 C.F.R.
§ 4.71, Plate II. The objective evidence shows that the
veteran has full range of motion of the left ankle.
In addition, there is no medical evidence of any current
damage to muscles in the area of the foot where the gunshot
wound was sustained, as evidenced by objective findings of no
muscle wasting or atrophy of the heel. There are apparently
areas of diminished sensation about the left ankle. At the
same time, however, motor function of the foot is quite good,
as evidenced by the veteran's ability to satisfactorily raise
up on his toes and heels. In order to be entitled to a
rating higher than 10 percent for foot injury residuals,
there must be evidence of moderately severe impairment. This
has not been demonstrated.
The residuals of a gunshot wound to the left hand are most
appropriately rated, in this case, on the basis of an injury
to the left thumb under 38 C.F.R. § 4.71a, Diagnostic Codes
5152, 5224, 5228. These diagnostic codes pertain,
respectively, to amputation of the thumb; ankylosis, or
immobility of the thumb; and limitation of motion of the
thumb. The veteran is right handed, so the left hand is his
minor extremity. The medical evidence demonstrates that the
principal residual of the gunshot wound of the left hand is
the presence of some deformity of the left thumb, with the
interphalangeal joint of the thumb angulated in a position of
hyperextension. At the same time, however, the veteran is
capable of bringing his left thumb to within 1.0 cm of the
fifth finger, thus indicating, at most, only slight
limitation of the range of motion of the left thumb.
Clearly, there is no objective evidence that the original
injury to the thumb led to an amputation; as well, there are
no clinical findings of ankylosis of the thumb.
There is no objective evidence currently that the veteran has
wasting or atrophy of muscle structures in the area of the
left thumb. The Board is aware that a VA examination in
several years ago, in July 1989, demonstrated some diminished
grip strength of the left thumb and forefinger. However, the
most recent VA examination in November 2004, for the purpose
of rating the left thumb disability, showed that the veteran
had full grip strength of all fingers of the left hand.
The veteran sustained a postservice injury to the second and
third fingers of the left hand, and there are x-ray findings
of traumatic changes involving the distal phalanges of the
left index finger and left long finger. He has reported
sensory changes involving not only the left thumb, but the
left index finger and left long finger, as well. Service
connection is not in effect for injury residuals involving
fingers other than the thumb, and any disability involving
either the left index finger or left middle finger may not be
considered in evaluating the extent of the disability from
residuals of a gunshot wound to the left hand.
In order to be entitled to assignment of a rating higher than
10 percent for residuals of a gunshot wound to the left hand,
there must be evidence of either amputation of the thumb,
unfavorable ankylosis of the thumb, or limitation of motion
of the thumb to the extent that there is a gap of more than
two inches (5.1 cm) between the thumb pad and the fingers,
with the thumb attempting to oppose the fingers. This has
not been demonstrated under either the former or revised
rating criteria.
In addition to consideration of the above Diagnostic Codes
for application to a thumb injury, the Board has also
considered evaluation to the veteran's left hand disability
on the basis of a scar under 38 C.F.R. § 4.118, Diagnostic
Code 7805. The medical evidence demonstrates that the wound
scar of the left thumb is well healed. There is no
indication of adherence of the scar to underlying muscles of
the hand. There is no medical evidence that the scar in any
way impedes motion or function of the thumb. The scar, then,
is essentially asymptomatic. From an objective standpoint,
the veteran is not entitled to assignment of a rating higher
than 10 percent for residuals of a gunshot wound to the left
hand on basis of a scar, under either the former or revised
rating criteria.
Statements from the veteran indicate that he experiences pain
with motion of the left foot and left hand. He also reports
certain functional limitations, including an inability to
walk uphill and the need to rest often because of left heel
pain. However, no VA examiner found objective indications
that pain actually accompanied range of motion of the left
foot or left hand. Also, there is no demonstrated muscle
wasting or atrophy of the left foot or left hand, thus
indicating no weakness or premature or excess fatigability.
Moreover, the recent medical evidence shows that the
veteran's left foot does not produce a verifiable limp, nor
is the veteran shown to have loss of left hand grip
strength-these findings indicate no loss of coordination
from gunshot residuals involving either the left foot or left
hand. Each of the currently assigned 10 percent ratings for
the disabilities of the left foot and left hand takes into
account any additional range of motion loss from pain,
weakened movement, excess fatigability or incoordination.
So an increased evaluation, based on pain or functional loss
alone, is not warranted. The veteran is not entitled to
additional compensation under the holding in DeLuca or the
provisions of 38 C.F.R. §§ 4.40 and 4.45.
In determining that increased ratings for gunshot wounds of
either the left foot or left hand are not warranted, the
Board has been mindful of the benefit-of-the-doubt doctrine.
But since, for the reasons stated, the preponderance of the
evidence is against the claims, the doctrine does not apply.
See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
ORDER
Service connection for tinnitus is denied.
A rating higher than 10 percent for residuals of a gunshot
wound gunshot wound to the left foot is denied.
A rating higher than 10 percent for residuals of a gunshot
wound to the left hand is denied.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs